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Background

This hearing concerned cross-applications made by the wife (“W”) against the husband (“H”) in the context of W’s application for financial remedies. The parties were both in their mid-50s, and were married for 27 years. Decree Absolute was pronounced in October 2019.

There was a dispute between the parties about c. €8m/£7m in cash and securities in four overseas bank accounts in W’s name. The funds in those accounts had been transferred to the parties over a 17-year period by H’s uncle and aunt (“U&A”). U&A executed notarised deeds of gift and made gift declarations when donating the funds to W. There were various tax issues relating to the initial non-declaration of the accounts by W when they were transferred to her, but eventually W reached a settlement with HMRC.

However, one week before the parties’ First Appointment, W was served with notice of a claim instituted by U&A against her in Italy for her to return the monies deposited in the overseas accounts. Both W and U&A instructed Italian lawyers.

The final hearing of W’s application for financial remedies took place before Recorder Nicholas Allen QC (“the judge”) in October 2019. By the morning of the fourth day, the parties had reached an agreement and both counsel invited the judge to approve that agreement as a Rose order, which was done on the same day.

These applications

The drafting of the order after that point proved contentious, and months passed with draft orders going back and forth between the parties. Various applications were subsequently made by both W and H. W sought:

  • Orders for indemnities from H.
  • An order for a lump sum to cover the costs of future litigation in the Italian proceedings.
  • An order for H to pay her costs since incurred the Rose order (which was made on 24 October 2019).
  • An order for H to retain the funds held in the overseas accounts in a UK account in his sole name until U&A have both passed away.
  • An order for H to maintain an address for service within the UK.

W sought for these orders to be ‘inserted’ into the Rose order. She made the latter two applications on the basis that she wanted security for the indemnities she sought from H.

H sought:

  • An order for permission to disclose a transcript of W’s oral evidence at the final hearing to U&A, so that it could be adduced by them in the Italian proceedings.
  • Various disclosure orders against W.

W relied upon the Thwaite jurisdiction (established in Thwaite v Thwaite [1982] Fam 1). She sought the ‘insertion’ (a term adopted only for convenience by the judge) into the Rose order of the new orders sought pursuant to this jurisdiction.

The law

The judge set out the history of Rose orders (which originated in Rose v Rose [2002] 1 FLR 978). He said that a Rose order is one that is ‘final and binding notwithstanding the fact that it still requires perfection and sealing’ [36].

He then set out the history of the Thwaite jurisdiction, and cited the judgment of Bracewell J in Benson v Benson (Deceased) [1996] 1 FLR 692, where he said at page 696: ‘the judge has an inherent jurisdiction to make a fresh order for ancillary relief where the original order remains executory if the basis upon which it was made has fundamentally altered’ [39]. This was agreed with by Munby J (as he then was) in L v L [2008] 1 FLR 13, who said at [67] that: ‘The essence of the jurisdiction is that it is just to do – it would be inequitable not do so – because of or in the light of some significant change in the circumstances since the order was made’ [40] .

The judge then considered Bezeliansky v Bezelianskaya [2016] EWCA Civ 76, although he noted it was a decision of the Court of Appeal refusing permission to appeal so that, strictly speaking, it could not be relied upon as an authority. In that case, McFarlane LJ said at [39]: ‘…With respect to cases where there is an undertaking or an order that is still executory the approach to determining whether or not to set aside or vary the order is, as the appellant submits, based upon it being inequitable to hold to the terms of the original order in the light of a significant change of circumstances… In any event I agree with Mr Chamberlayne that the circumstances justifying intervention are likely to be met where an order remain[s] executory as a result of one party frustrating its implementation’ [43].

In SR v HR (Property Adjustment Orders) [2018] 2 FLR 843, Mostyn J said that Thwaite gave ‘no support to the notion that if the court, exercising its equitable jurisdiction, refuses to enforce an order it gains the power to make a completely new one’, ( at [12]) and that ‘any application under the principle in Thwaite should be approached extremely cautiously and conservatively’ (at [13]). Neither counsel invited the judge to place great weight on this authority, particularly where it could be said to be in conflict with previous and subsequent authorities [44-45].

Nonetheless, in US v SR (No. 4) (Executory Mainframe Distribution Order: Change in Circumstances: Extent of the Court's Ability to Revisit Terms) [2018] EWHC 3207, Roberts J expressed confidence that the approach of Munby J to the Thwaite jurisdiction in L v L, as approved in Bezeliansky, did represent such a cautious and conservative approach. At [56], she considered that any revision of a final order ‘must be contained and, so far as possible, should reflect the underlying intention’ of the original order [46].

W’s position

W argued that the Rose order remained executory, such that the court therefore retained the power to make a new or varied order in the light of new and significant evidence. She said that in view of the failure of H to comply with the agreements reached, and with the conditions upon which the order was made therefore remaining unsatisfied, it would be inequitable not to grant her the relief sought and simply to implement the order without fulfilling the conditions upon which it was made.

The judge’s analysis

The judge considered that:

a. The Rose order was not in any germane respects different to any other order of the court.

b. The test as to whether the Rose order was variable under the Thwaite jurisdiction was therefore no different in any material respect to any ‘ordinary’ order of the court that had been perfected and sealed.

c. He was entitled to rely on Thwaite and the subsequent authorities.

In deciding whether the Thwaite jurisdiction was engaged, the judge asked himself five questions:

1. Did the Rose order remain executory?

2. Had there been a change in circumstances?

3. If so, would it be inequitable to hold W to the terms of the Rose order?

4. If those three questions were answered in the affirmative, what relief sought by W to be inserted into the Rose order was capable of being so inserted pursuant to the Thwaite jurisdiction?

5. If any type of relief sought by W could be so inserted, should the relief sought be granted?

The judge thought that it was probably not necessary for the change in circumstances to amount to a Barder event in order for the Thwaite test to be satisfied, and so proceeded on the basis that it required only a ‘significant change in circumstances’.

He added that his view was that the exercise of the Thwaite jurisdiction was not strict set aside, but was a sui generis power to adjust. If the court were to set aside some of the substantive paragraphs in exercising that power, it was not setting aside the order.

1. Was the Rose order executory?

The judge decided that the order itself was executory. While some other elements of the order had been complied with, others had not (for example, W had not yet transferred funds held in overseas accounts to H, as ordered). The order therefore remained executory ‘in the sense that the operative terms of the same remain unimplemented’ [55]. He was satisfied that the order remained executory on that basis alone.

2. Had there been a change of circumstances?

The judge did not consider the fact that two tripartite agreements (in deeds) had not been executed to be a change of circumstances. The detail of the agreements was not compromised on the day settlement was reached, and so it ‘must therefore have been obvious to both parties that there remained a degree of work to be done in respect of the same’ and that the work could prove contentious [57].

Similarly, he did not consider the fact that U&A had not yet withdrawn their claim in Italy against W to be a change in circumstances. W either was or ought to have been aware that there would need to be negotiations before the Italian proceedings were finally resolved. U&A were not parties to the financial remedy proceedings and it must have been obvious to both parties at the time they reached agreement that there remained a degree of work to be done.

Finally, the judge did not consider the fact that W had incurred costs since the day settlement was reached to be a change in circumstances, as the terms of the Rose order plainly envisaged further, and likely extensive, work. In any event, costs W had occasioned in addition to those in relation to making these applications should (if she was successful) be subject to a separate freestanding application for her costs, and not one that needed to be inserted into the Rose order.

There was therefore no change of circumstances such that the Thwaite jurisdiction was engaged.

Nonetheless, the judge went on to consider the other questions, in the event that he was wrong in reaching this conclusion.

3. Would it be inequitable to hold W to the terms of the Rose order?

The judge considered that he could not and should not make findings at this hearing in relation to either party’s evidence at the final hearing. At the final hearing, he heard oral evidence from W, and also had written evidence from her. However, although he had written evidence from H, he did not hear any oral evidence from him.

In circumstances where he was not prepared to make findings in relation to either party, he was not prepared to entertain the speculation which W invited him to entertain in relation to whether or not H was the architect of W’s difficulties in the Italian litigation. For the same reason, he was unable to find or somehow otherwise infer that W was the cause of the problems that had arisen since the Rose order, as H claimed.

H also submitted that W could not argue that it would be unconscionable for her to be held to the terms that were originally agreed to by her. The judge thought that must be wrong because in Thwaite itself the order had been made by consent and was successfully challenged, and there is no later authority which casts doubt on whether, if an order has been made by consent, the parties are effectively estopped from making an application pursuant to the Thwaite jurisdiction.

As a result, the judge did not think that it was open to him to find that it would be inequitable to hold W to the terms of the Rose order.

It followed that overall, he did not consider that the Thwaite jurisdiction had been engaged in this case. Consequently, he was satisfied that he could not entertain granting the relief sought by W by inserting the orders she had applied for into the Rose order.

4 and 5. Should the relief sought by W be granted

Although it was unnecessary given his conclusions, the judge nonetheless considered whether he would grant the relief sought by W in the event that he was wrong and the Thwaite jurisdiction was in fact engaged.

Indemnities

The judge decided that he would have declined to grant the indemnities sought. W sought an order that H was to indemnify her in respect of any liability and any order or award of whatever nature made against W in the existing Italian proceedings brought by U&A during their lifetime, or maintained by their estates. W also sought an order that H was to indemnify her in respect of U&A bringing future claims against her and her professional advisors.

Because the judge did not consider that he was able to conclude that H was to blame for the fact that W and U&A had not been able to reach an agreement, nor that H was somehow guilty of acting in bad faith in relation to the Italian proceedings, the aspect of the Thwaite test which asked whether or not it is ‘just to do so’ (which is likely to be met where an order remains executory as a result of one party frustrating its implementation, per McFarlane LJ in Bezeliansky at [39]) was not satisfied. This was relevant as to whether or not it was appropriate to order either of the two indemnities sought.

There was also a jurisdictional issue as to whether or not the judge could order that H should indemnify W’s professional advisors. The judge noted that it was not necessary for him to express a detailed view on the issue in light of the conclusions he had reached. However, he said it was his provisional view that the court’s power to order an indemnity is not free-standing, but depends upon a cause of action, so that as a consequence the court has no jurisdiction to order a party to the marriage either to pay a lump sum or to indemnify a non-party (here Withers, W’s solicitors) in respect of actions brought by another non-party (here U&A).

A lump sum to cover the costs of future litigation in the Italian proceedings

It was agreed that the jurisdiction to order a lump sum to fund the cost of future litigation between W and U&A in the Italian proceedings existed. However, the judge did not consider it was open to him to find that H was the architect of W’s misfortune in the Italian proceedings, and absent a finding to that effect, he would not have been persuaded that granting this relief would have been appropriate.

However, he did not consider that he would have been precluded from making the lump sum order sought by the fact that a capital order had already been made in favour of W once (because capital orders can only be made in favour of a party once). If the court is exercising the Thwaite jurisdiction, it has the power to make fresh orders. The court is, in effect, making orders on the original financial remedy application, because it remains extant while the order is executory.

The judge added that neither an indemnity nor a ‘war chest’ formed part of the agreement the parties reached, such that it would not be appropriate to impose upon H that which W was willing to negotiate away in reaching the agreement.

Order for H to pay W’s costs incurred since the Rose order

This application was likely to turn on the disposal of the preceding two applications. If those were dismissed, it was likely this application would also be dismissed.

Overall, therefore, the judge concluded that even if he was wrong and the Thwaite jurisdiction was engaged, he would have declined to insert the orders sought by W into the Rose order.

H’s applications

For disclosure of the transcript of W’s evidence

H sought an order for disclosure of the transcript of W’s evidence from the final hearing to U&A, so that they could put the transcript before the Italian court in the Italian litigation. The judge thought that this was an application for U&A, and not for H, to bring.

If he was wrong about that, he stressed that the starting point is that financial remedy proceedings are held in private, so the fact that the Italian court sits in public would have to be taken into account.

H’s application was therefore dismissed.

For disclosure in relation to W’s relationship with her partner and her new business

The relevant question was whether there was anything at the time of the hearing that justified the grant of this relief.

H submitted that he had a strong case that W was cohabiting, and that this would have been relevant to the court’s assessment of W’s needs (this was a needs case) and to H’s position in negotiations. In her written evidence, W had said there was no financial interdependency between her and her new partner, and that they did not cohabit. The judge thought that he was not in a position to make adverse findings in respect of W’s untested written evidence, and that in any event the ambit of the disclosure sought was so broad that to grant the relief would be disproportionate.

The judge also declined to order disclosure regarding W’s new business, since this had been a live issue at the final hearing. Had H wanted to pursue it he could have done so, but he chose not to.

Costs

It was the judge’s provisional view that the appropriate order to make was no order as to costs in respect of all the applications.

Conclusion

The judge therefore dismissed the applications made by both parties in their entirety. He commented that it must be ‘a matter of considerable regret for both of the parties that they have spent so long locked in this litigation and that there is little sign of it abating’ [118]. This was not, at least by present-day standards, a ‘big money’ case, and the financial and emotional cost of the litigation for both parties had been significant.

Henrietta Boyle, Pupil at 1 Hare Court

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